The "Middle East and Terrorism" Blog was created in order to supply information about the implication of Arab countries and Iran in terrorism all over the world. Most of the articles in the blog are the result of objective scientific research or articles written by senior journalists.

From the Ethics of the Fathers: "He [Rabbi Tarfon] used to say, it is not incumbent upon you to complete the task, but you are not exempt from undertaking it."

Thursday, September 8, 2016

Israeli Settlements, the Violet Line and the Cheshire Cat - Malcolm Lowe

by Malcolm Lowe

All the settlements created
by Israel before the Oslo accords are legitimate, including the new
Israeli housing estates created in the extended boundaries of Jerusalem.
As long as the "interim period" envisaged in those accords remains in
force, Israel is allowed to build within the originally defined pre-Oslo
boundaries of the settlements, but is not allowed to change their
pre-Oslo status. The Palestinians are not excluded from demanding a
total Israeli withdrawal to the ceasefire lines of 1949, but Israel is
likewise not excluded from demanding the retention not merely of the
settlements but also of any other part of the Mandatory Palestine of
1947.

The Fourth Geneva Convention contains a Part I that applies to
wars both within a Power and between Powers. Otherwise, the Convention
applies primarily to wars between Powers alone. The conflict between
Israelis and Palestinians began as a civil war under the British Mandate
for Palestine and continued as such until at least the late 1980s.
Until then, consequently, Part I of the Convention applied to the
conflict, including Israeli settlements beyond the Green Line, but Part
III – which purportedly forbids the existence of such settlements – did
not yet apply. Part III became relevant, if at all, only for events that
postdated the Oslo accords of the 1990s.

If there is anything that perplexes good friends of Israel, it is the
issue of settlements beyond the "Green Line" (a misleading term, as we
shall see). In a familiar phenomenon, a foreign politician arrives in
Jerusalem to make a speech that manifests genuine admiration of the
State of Israel and its achievements, but proceeds to an equally genuine
cry of distress over its settlement policies. Why? Because they are
supposedly "illegal under international law."

These friends, as we shall see, are making a widespread basic
mistake. Because of the endless talk of a "two-state solution," the
conflict between Israelis and Palestinians is viewed as if it had always
been a war between two states. In fact, it began as a civil war under
the British Mandate for Palestine and continued as such until at least
the late 1980s. By that time, almost all the present settlements were
already in existence. Consequently, the provisions of international law
that should apply to them are those that pertain to civil wars, not to
inter-state wars.

Preliminaries

To start with, let us set aside some questions whose answer is
relatively simple. First, the present Israeli occupation of lands
acquired during the Six Day War of 1967 is not illegal per se,
because it resulted from aggression by the neighboring states concerned.
Hostilities with Egypt started when Egypt blockaded the Israeli port of
Eilat, an act of aggression that was followed by Egypt's demand for the
removal of United Nations peacekeepers from the border between the two
states (obviously in preparation for further acts of aggression).
Hostilities with Jordan began with a Jordanian bombardment of the
Israeli part of Jerusalem. As for Syria, it had for years been engaged
in constant aggression by way of encroachments into Israeli territory
and bombardment of Israeli villages from the Golan Heights. Moreover, a
recent expert report (2012) of the International Committee of the Red
Cross emphasized that International Humanitarian Law "did not set any
limits to the time span of an occupation" (see p. 72);
rather, the longer the occupation lasted, the more the "occupying
power" was required to upgrade the infrastructure, etc., for the benefit
of the inhabitants.

Second, the sale of goods produced in those Israeli settlements is
not illegal in most of the world's markets. In the European Union (EU),
for example, it is legal under two conditions. One condition is
obligatory: those goods do not enjoy the reductions in customs duties
that pertain to free trade agreements between Israel and the EU, because
these agreements apply explicitly to the area of pre-1967 Israel. The
other condition is optional: the EU Commission issued guidelines in
November 2015 on how to label such products. After a fuss, the
Commission conceded
that the individual European governments could decide whether and how
to implement the guidelines, while emphasizing that such labeling is not
a boycott and that the EU opposes any boycotts of Israel. (See here for a comprehensive discussion of the matter, also regarding other disputed territories.)

Some have accused the EU of antisemitism because it issued guidelines about Israel while treating other disputed territories
in the world differently. But one should be wary of issuing blanket
accusations of antisemitism. While some EU officials may be spurred by
antipathy to Jews, various European leaders have not merely emphasized
that the labeling is not equivalent to a boycott but have gone out of
their way to combat boycotts of Israel -- also by way of legislation to
punish boycotters. To accuse those leaders of antisemitism is both
unfair and unwise.

So we are left with the question of whether the building of Israeli
settlements is itself illegal. Here too, a further simplification is
possible. As the Golan Heights were part of sovereign Syrian territory
before 1967, there is a stronger argument that Israeli settlements there
are illegal (except where Syria had encroached beyond the border
between the former French and British Mandates). But this issue is
hardly topical, given the current civil war in Syria and the fact that
almost all the participants (Kurds may be an exception) are fanatically
opposed to the existence of Israel as such. What pains friends of
Israel, as well as others who at least tolerate Israel's existence, is
territory in dispute between Israelis and Palestinians. We shall
consider only this.

One further preliminary: there are fundamental differences between
national law and international law. National law relies upon
legislatures that can decree or alter it and upon judicial systems that
enforce it. International law largely lacks both. In the time of ancient
Greece and Rome, the lack was supplied by a widespread conception that
certain acts, such as the violation of ambassadors and heralds, were
abhorrent to the gods and would be punished by the gods (with epidemics
or famines or whatever). That is, the gods both defined international
law and enforced it. Homer's Iliad opens with such a case.

Today, of course, such theological conceptions -- which intimidated
the Ancients and imposed a degree of morality upon them -- are regarded
as quaint and outdated. As a result, international law now depends
partly upon ancient custom that has survived (even after the
disappearance of its original justification) and partly upon individual
treaties between states. Yet gaps remain; filling them is the plaything
of those who have set themselves up as international lawyers and debate
among themselves.

International Consensus and International Law

Earlier this year, a visiting European professor held a public
lecture in Jerusalem to tell us "what international law says about"
Israel's conflict with the Palestinians. He called this "the Near East
Conflict," as if international law had little to say about the far
bloodier conflicts that currently engulf the rest of the region.

His presentation consisted largely of a recital of lists of
resolutions by various United Nations bodies disapproving of Israeli
settlement activity. More interesting were his answers to some of the
questions.

One question noted that resolutions of the UN General Assembly are
not binding and that even resolutions of the Security Council, to be
enforceable, must escape a veto by any permanent member and be adopted
under Chapter VII of the UN Charter. Thus the resolutions that he had
quoted might be seen as expressing an international consensus, but when
and how does an international consensus become international law?
"This," said the professor, "is the most important question in
international law!" His answer was something to the effect that -- to
his mind -- if enough international players say the same thing
repeatedly, then it could be seen as international law.

This answer is problematic. Consider UNESCO: it has a professional
Secretariat, which tries to do sound scientific work, but its governing
body is an International Council to which each member country sends a
representative. In the decisions of the International Council, political
interests trump scientific opinion. Recently, the International Council
adopted an Arab-sponsored resolution
that denounced Israeli activity in and around "al-Aqsa Mosque/Al-Haram
al-Sharif." Not only did the resolution fail to mention that this is the
Temple Mount, it also accused Israel of "planting Jewish fake graves in
other spaces of the Muslim cemeteries" and of "the continued conversion
of many Islamic and Byzantine remains into the so-called Jewish ritual
baths or into Jewish prayer places."

Of course, there are such ancient graves, ritual baths and Jewish
religious sites; they are not fakes. To claim otherwise is to endorse
the nauseous lie promoted by the Palestinian Authority (PA) in recent
years: that there never were Jewish temples on the Temple Mount and that
the Jews are a medieval European invention that has no ancient
connection with the Land of Israel. To her credit, the Secretary-General
of UNESCO expressed her dismay at this violation of all professional
norms. The automatic pro-Palestinian majority in UN bodies, however, can
ensure that the lie will be repeated in resolution after resolution.
According to the professor's criterion, therefore, the big lie and all
the associated smaller lies will eventually become entrenched in
international law; to act in disregard of those lies will be a violation
of international law.

A second question pointed out that the most famous UN General
Assembly resolution (November 29, 1947) approved the plan to divide
Mandatory Palestine into a Jewish-majority state and an Arab-majority
state. But the proposed territory of the former was smaller
than the State of Israel as it emerged from its War of Independence in
1949. In particular, northwest Israel -- from Haifa to the border with
Lebanon -- was assigned to the Arab state. So why should international
law recognize this transfer of territory from Arab to Jewish control?

The professor's answer was that international law changed between
1949 and 1967. In 1949 it was still permissible for a state to acquire
territory by way of warfare, but by 1967 it was forbidden even in the
wake of a defensive war.

This answer is astounding. During World War II, the Soviet Union
perpetrated a vast land grab from states to its west: Karelia from
Finland, the three Baltic Republics, half of prewar Poland,
Transcarpathia from Czechoslovakia and Moldova (Bessarabia and North
Bukovina) from Romania. That massive theft remains valid in
international law (only the breakup of the Soviet Union freed some of
the subject peoples). But the building of a dozen Israeli homes in
Samaria is a serious "violation of international law."

When exactly did this change take place? The professor suggested "the
end of the colonial era," but perhaps one can be more precise. The
Ukraine and Belarus, although part of the Soviet Union, were founder
members of the UN with seats in its General Assembly; they were formally
independent states in international law. When the Supreme Soviet
decreed the transfer of the Crimea from Russia to the Ukraine in 1954,
regardless of the feelings of the inhabitants, international law could
apparently tolerate it. But when Russia took it back in 2014, after a
referendum in which 94% of the inhabitants approved the step, it was a
violation of international law.

The change in international law, then, took place between 1954 and
1967. Remember that Israel captured the Sinai Peninsula twice: in 1956
and 1967. The first time, it might have got away with annexing it; the
second time, it was too late. Or so it seems.

At the end of his lecture, the professor got quite angry, not
specifically with Israel. All over the world, he complained, "creeping
annexations" were going on in defiance of international law. As a
specialist in the field, he felt infuriated and helpless.

In Oliver Twist, Mr. Bumble protests: "If the law supposes
that, the law is a ass... and the worst I wish the law is that his eye
may be opened by experience..." (This was the lifelong conviction of
Dickens himself, as other novels testify.) Apparently, international law
is also perceived as "a ass" in the experience of all those creeping
annexers.

Returning to the Green Line, we can pinpoint the mistake made by the
professor and by such colleagues as agree with him. The crux is the
interpretation of the Fourth Geneva Convention of 1949, which says, inter alia:
"The Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it occupies." This statement
occurs in Article 49 of Section III of Part III of the Convention.

The professor acknowledged that some international lawyers, not only
Israelis, object to the application of the Convention to areas beyond
the Green Line on various grounds: that Article 49 was formulated with
Nazi deportations of Jews in mind, that those areas did not belong to
any state in 1967, and that the Jews who subsequently chose to live
there did so of their own free will and not because they were "deported"
or "transferred" by Israeli governments, although it was these
governments that planned and approved the settlements. Quite correctly,
the professor claimed that his own view is endorsed by the consensus
expressed in the many resolutions that he quoted, including a few
resolutions of the Signatories of the Convention itself (most recently
in December 2014).

We would like to suggest a solution to this dispute, a suggestion
that seems never to have been made hitherto. In particular, it does not
feature in the Edmond Levy Report of 2012, of which some arguments and
conclusions are available in two English translations.

The Fourth Geneva Convention contains a Part I that applies to wars
both within a Power and between Powers. Otherwise, the Convention
applies primarily to wars between Powers alone. The conflict between
Israelis and Palestinians began as a civil war under the British Mandate
for Palestine and continued as such until at least the late 1980s.
Until then, consequently, Part I of the Convention applied to the
conflict, including Israeli settlements beyond the Green Line, but Part
III – which purportedly forbids the existence of such settlements – did
not yet apply. Part III became relevant, if at all, only for events that
postdated the Oslo accords of the 1990s.

To be precise, the relevant item in Part I is Article 3: "In the case
of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties..." (There follow some
elementary principles about the treatment of prisoners and the wounded,
but nothing about settlements.) This article does go on to say: "The
Parties to the conflict should further endeavour to bring into force, by
means of special agreements, all or part of the other provisions of the
present Convention." But the possibility of such "special agreements"
was ruled out by the Arab states shortly after the Six Day War with
their Khartoum Resolution
(September 1, 1967). The resolution reiterated "the main principles by
which the Arab states abide, namely, no peace with Israel, no
recognition of Israel, no negotiations with it, and insistence of the
rights of the Palestinian people within their own country" (i.e., their
"right" to all of Mandatory Palestine).

Specifically, a mutual agreement not to create settlements was
excluded by the insistence of the Palestine Liberation Organization
(PLO) that its mission was to destroy the State of Israel, expel most of
its Jewish population and replace them with Arabs. Indeed, Article 24
of the original PLO National Covenant of 1964
expressly excluded the West Bank and Gaza from that mission, so as not
to antagonize Jordan or Egypt; this article was omitted in the revised version of 1968.
The latter further clarified (Article 6): "The Jews who had normally
resided in Palestine until the beginning of the Zionist invasion will be
considered Palestinians." That is, almost the entire Jewish population
of Israel -- which fails that criterion -- should be expelled. This is
proof enough that for the PLO their war against the Jews continued --
even after the Six Day War -- to be a civil war for the control of the
whole of Mandatory Palestine.

That was the united Arab position until the Palestinian National
Council (PNC) decided in 1988 to envisage negotiations with Israel. In Yasser Arafat's address
to the UN General Assembly in December that year, he admitted that
previously the PNC had insisted upon the "dream" of a single state in
the former Mandatory Palestine, but asserted that the PNC had now
decided to adapt to "reality" by proclaiming a Palestinian State just in
those areas occupied by Jordan and Egypt during 1949-1967.

That proclamation, of course, did not create a State of Palestine.
Serious negotiations on a two-state solution began only with the Madrid
Conference of 1991. In the meantime, Arafat had made himself hated among
the Arab states by his support for Iraq's seizure of Kuwait in 1990; he
had been exiled to the South Libyan Desert because nowhere else wanted
to have him. Nor was the PLO allowed to send a delegation to Madrid.
Instead, there was a joint Jordanian-Palestinian delegation whose
Palestinian members were residents of the West Bank and Gaza. It was
only through the so-called Oslo accords of 1993 and 1995 that the
conflict began to move away from civil war toward a conflict between
states.

By 1995, however, virtually all of the currently existing Israeli
settlements in the West Bank were in place. They are products of a
period of civil war and should be evaluated as such.

Indeed, many Israelis and Palestinians still think and act even today
as if they were Parties involved in a civil war in the territory of
Mandatory Palestine. Both continue to debate the pros and cons of a
one-state solution and a two-state solution, despite the international
consensus favoring the second. They have always seen it as a dispute
about a single country to which both groups possess a total claim. Even
many on the Israeli Left, who campaign doggedly for Palestinian
independence, admit that they give up the historic heartland of Judea
and Samaria with a sad heart for the sake of peace.

Especially the Palestinians wish to restore the state of affairs that
existed before 1947. Although some Palestinian factions have expressed
readiness for a peace treaty based on the Green Line, all the factions
are agreed that the conflict will not end until an Arab majority has
been created in Israel by flooding the country with the refugees of 1948
and their millions of descendants. Reunion with Gaza and the West Bank
would then follow. Likewise, opinion polls have testified that the vast
majority of the Palestinian population views the "two-state solution" as
acceptable only as a stage toward a unitary state on the territory of
the British Mandate.

As for Arafat himself, despite his speeches in English from 1988 on,
he clearly never abandoned the struggle to eliminate the State of
Israel. In early 1996, details of a speech
emerged that he had given to a closed audience of Arab ambassadors in
Stockholm on January 30. There he explained that the Oslo accords signed
with Israel in 1993 and 1995 were a ruse to give the PLO a base in
Palestine from which it could make the lives of Jews so miserable that
they would all want to leave. This strategy he put into action, in vain,
during the Second Intifada of 2000-2005, after refusing
Israeli-American offers to create a Palestinian state that satisfied all
Palestinian demands except the "right of return" for Palestinian
refugees.

Picture:
Israeli Prime Minister Yitzhak Rabin, U.S. President Bill Clinton, and
PLO chairman Yasser Arafat at the Oslo accord signing ceremony on
September 13, 1993.
Arafat clearly never abandoned the struggle to eliminate the State of
Israel. In 1996, Arafat publicly stated: "We Palestinians will take over
everything ... You understand that we plan to eliminate the State of
Israel, and establish a purely Palestinian state. ... I have no use for
Jews; they are and remain, Jews." (Image source: Vince Musi / The White
House)

When the Israel Defense Force (IDF) occupied Arafat's headquarters in
Ramallah during 2002-2004, it found documents signed by Arafat
authorizing money for bomb belts for suicide bombers. Arafat was aware
of what he was signing, as he had personally crossed out the sums
requested and replaced them with smaller sums. So much in secret; his
public speeches in Arabic included a ditty that sang of "a million
martyrs marching on Jerusalem." It made meaningless his commitments in
the Oslo accords to cease terrorism and incitement.

Arafat's successor, Mahmoud Abbas, clearly disapproved of Arafat's
terrorism during the Second Intifada, not because it was immoral but
because it was counterproductive. Incitement continues until today: Palestinian Media Watch
has compiled a vast archive of examples from the Palestinian media,
education system and public ceremonies, including senior PLO and Fatah
figures close to Abbas himself.

The Violet Line

There were originally two French Mandates, in Lebanon and in Syria,
and two British Mandates, in Iraq and in Palestine. All four have turned
into theaters of unresolved civil war. Palestine was the first and the least bloody. (Even in Lebanon, civil war is estimated to have claimed more victims and remains unresolved as long as Hizbullah forms a heavily-armed state within the state.)

Probably none of those civil wars can be resolved, if ever, without
multi-state solutions. The international consensus -- with the
stubbornness of "a ass" -- treats such solutions as impermissible except
in the case of Mandatory Palestine. Only here the consensus regards
partition as obligatory. The consensus also sees the "Green Line" drawn
in the Israel-Jordan Armistice Agreement
of 1949 as the appropriate boundary between the Israeli and Palestinian
states, subject to modifications agreed between both Parties.

The fault of this consensus is that it treats a civil war as an
inter-state war and proposes a half-baked solution that fits neither
kind of war. It is no wonder that the decades-long attempts to implement
such a misconception constantly end in failure. That it is a
misconception can be shown by a brief review of the whole history. It
will suffice to recall main features of the history: the aim is simply
to show that the history reads best as a history of civil war among the
inhabitants of a single territory.

The British Mandate for Palestine was agreed by the League of Nations
in 1922, following the latter's creation (January 1920) and the San
Remo Conference (April 1920). Its express purpose included the
realization of the Balfour Declaration (November 2, 1917):

"His Majesty's government view with favour the
establishment in Palestine of a national home for the Jewish people, and
will use their best endeavours to facilitate the achievement of this
object, it being clearly understood that nothing shall be done which may
prejudice the civil and religious rights of existing non-Jewish
communities in Palestine, or the rights and political status enjoyed by
Jews in any other country."

The Mandatory Power, however, was given the discretion to exclude
Transjordan from the provisions of the Jewish National Home. Britain did
so already in 1923, appointing its ally, Emir Abdullah, to rule there.
When Transjordan was given full independence in 1946, Abdullah was its
King.

At the beginning of the Mandate, the population west of the Jordan
was under a million. Less than 15% were Jews, but their numbers quickly
grew as the project to create a Jewish National Home got under way. The
initial assumption was that the area would, like Transjordan, become
independent under British tutelage. The Arab leadership -- both
religious and intellectual -- was however opposed not merely to that
project but to the Mandate itself, demanding immediate independence and
refusing to participate in any provisional government.

Riots inspired by the Arab leadership began sporadically already in
1920. Particularly horrifying was the 1929 massacre of Jews by Arabs in
Hebron. The Great Arab Revolt (1936-1939) began with attacks by Arabs
upon Jews, but became the occasion for the Husseini clan to kill or
expel much of the rival Nashashibi clan.

This set the pattern for later outbursts of warfare up to today's
confrontations between Fatah and Hamas: it would start with civil war by
Arabs against Jews and proceed to civil war among the Arabs themselves.
At the same time, all parties nursed the ambition to rule the entire
country. There were also many cases of close personal relations between
Jews and Arabs, at least until the outbreak of riots. During the Hebron
massacre, for instance, many Jews were hidden by Arab friends, though in
other cases they were drinking tea with supposed friends on one day and
killed by them on the next. This sort of thing, too, is typical of
civil wars, as in the former Yugoslavia.

The British tried two approaches to end the Great Arab Revolt. The
first was to appoint the Peel Commission (1937), which recommended
partition of the territory into a Jewish state, comprising Galilee and a
strip along the coast to Tel Aviv, and an Arab state linked to
Transjordan. But there were to be close relations between the two states
as well: since taxpayers were predominantly Jews, the Jewish state
should pay an annual subvention to the Arab one. The Jewish leadership
under David Ben-Gurion accepted the principle of partition, though in
the hope of getting more, but the Arab leadership rejected it outright.

The second approach was to suppress the revolt with Jewish help, but
then to publish a White Paper (May 1939) that effectively cancelled the
Jewish National Home (while pretending to achieve it). Only 75,000 new
Jewish immigrants would be allowed over five years, after which further
Jewish immigration would be subject to Arab agreement (that is, vetoed).
Palestine would become independent after ten years. The White Paper was
accepted by the Arab leadership under Amin al-Husseini. The Jews
naturally rejected it. When World War II broke out a few months later,
Ben-Gurion famously declared: "We will fight the White Paper as if there
is no war, and fight the war as if there is no White Paper."

A minority of Jews went further: they planned armed insurrection
against the British. This began in the closing months of World War II
and continued until, in early 1947, the British government announced its
intention to leave Palestine the next year. A fresh partition plan was
approved by the UN General Assembly on November 29. and the British
announced that the following May 14 would be the last day of their
administration.

Under the UN plan, the Northeast, West Central and Southeast of the
Mandate territory were allotted to the Jewish state; Northwest, East
Central and Southwest (plus Jaffa as an enclave) to the Arab state.
Jerusalem and Bethlehem were to remain initially under a "Special
International Regime." Obviously, such a division into areas presumed
that the two states would have to cooperate closely in order to be
viable and that the whole country would remain in many regards a single
entity.

The Jewish leadership, again, tentatively accepted it, but with
reservations especially about the safety of Jews in Jerusalem. The Arab
leadership rejected it immediately, making the plan unworkable, and Arab
"irregulars" quickly began to attack Jews anywhere. The remaining
months of the British administration formed the first stage of this
civil war, when the Arabs had numerous initial successes, but the Jews
eventually fought back and -- at least in the north and central areas --
secured what they had been promised and more, including a corridor
linking the central coast to Jewish neighborhoods in Jerusalem. On May
14, they proclaimed the State of Israel in those areas.

The second stage began the next day with the invasion of armies from
the neighboring Arab states and contingents from others. Once again, the
Arabs had major initial successes. But soon the Jews mobilized larger
forces, armed them massively with imported weapons, and gained land
beyond their original allotment. Moreover, the Arabs did not have a
united aim. King Abdullah wanted to annex as much land as he could to
his kingdom, whereas the other Arabs aimed to turn all of Mandatory
Palestine into a single Arab state. Thus although both Jordanian and
Egyptian forces reached the kibbutz Ramat Rachel on the southern
outskirts of Jerusalem, their inability to cooperate helped the Jews to
retain the kibbutz. As the war approached its end early in 1949,
Ben-Gurion was advised that the Israel Defense Force was now strong
enough to drive the Jordanian Arab Legion back across the Jordan, but he
preferred to expel the Egyptian Army out of nearly all the south.

The war ended with the signing of four Armistice Agreements between
Israel and its Arab neighbors. In the Jordanian case, a violet line and a
green line were drawn on a map. The Israeli representatives (Yigal
Yadin and Walter Eytan) signed on the map to confirm that the violet one
showed their military front line; Lieutenant Colonel Coaker of the Arab
Legion signed to confirm that the green one showed the Jordanian front
line. A portion of the map can be studied here and the whole map is unfurled in this video.
Also at places where the gap between the two lines is particularly
wide, as in Southeast Jerusalem, they can be seen as two distinct dotted
lines in Google Maps.

The custom of referring to the two lines collectively as "the Green
Line" may be convenient, but it is seriously misleading. Hardly any
contemporary politician or journalist is aware that there were two lines
and that their purpose was just to show the positions of armed forces,
not to designate a border. At the insistence of the Arab states, all the
Armistice Agreements included a statement to this very effect. In both
the Jordanian and Lebanese cases, the wording was:

"It is also recognised that no provision of this
Agreement shall in any way prejudice the rights, claims and positions of
either Party hereto in the ultimate peaceful settlement of the
Palestine question, the provisions of this Agreement being dictated
exclusively by military considerations."

The Syrian
one makes the point even more clear by replacing "by military
considerations" with "by military, and not by political,
considerations." The Egyptian one has a much longer formulation in order to ram the point home utterly unambiguously.

In every case, the aim was to deny any recognition of legitimacy to
the State of Israel and to insist that the Arabs retained their claim to
the whole of Mandatory Palestine. Thus when the IDF crossed the violet
and green lines in June 1967, it was crossing not a border but mere
ceasefire lines that had been made inoperable by a massive violation of
the Israel-Jordan Armistice Agreement by the Kingdom of Jordan.

On April 24, 1950, the Kingdom of Jordan annexed the area that it had
occupied. This completed a process begun in Jericho on December 1,
1948, when several thousand Palestinian notables from areas controlled
by Jordan dutifully begged King Abdullah to do it. No other Arab state
recognized this step; the Arab League later half-accepted it by
insisting that the area was in Jordanian custody until circumstances
would permit the Palestinians to acquire it. Indeed, the Arab League had
set up an "All-Palestine Government" on September 22, 1948, which was
recognized by all its members except Jordan; this soon became a tool of
Egypt with the role of sending terrorists into Israel.

Jordan's constitution was changed to give equal representation in the
parliament to the "East Bank" and the "West Bank," as they were now
renamed. In the whole world, only Britain (some would add Pakistan)
recognized this other "united kingdom." The last election took place in
April 1967, just before the Six Day War; the West Bank members who were
then elected retained their seats until Jordan finally ceded the
representation of Palestinians to the Palestine Liberation Organization
in 1988. Curiously, the replacement of the millennial names of the area,
"Judea" and "Samaria" (also in Arabic: يهودا والسامرة), by the term
"West Bank" has been accepted by an international consensus that always
denied the validity of what the term was invented to designate.

From 1949 on, Egypt sponsored incursions of Palestinians to commit
terrorist attacks in Israel. After the Six Day War, such incursions
continued from Jordan, provoking Israeli retaliation. There were also
clashes between armed Palestinians and the Jordanian police, until King
Hussein ordered his army to suppress armed Palestinian groups and
expelled the PLO leadership in 1970-71. Israel likewise suppressed
Palestinian violence in Gaza. The situation calmed down to such an
extent that during the Yom Kippur War of 1973, the Palestinians under
Israeli rule remained wholly passive.

Once again, the former Mandatory Palestine became effectively a
single country, where everyone could go anywhere. Up to 100,000
Palestinians commuted to daily work in Israel and a similar number was
believed to be working there illegally. Another result was that much --
maybe the majority -- of at least the male Palestinian population
learned to speak Hebrew, allowing everyone to communicate.

On the other hand, when in 1976 Israel permitted elections for mayor
in the Palestinian cities, various pro-Jordanian notables were replaced
with evident PLO sympathizers. Nevertheless, during most of the 1970s
and 1980s the whole country was remarkably tranquil; violent incidents
were small compared with other parts of the Middle East and the
Palestinians enjoyed an economic boom. Menahem Milson, a distinguished
Israeli Professor of Arabic Studies, recently published a memoir
of his discussions with Palestinian intellectuals in those years. The
memoir documents the ease with which they met, the genuine friendships
that developed, but also the total intransigence and incapacity of the
Palestinians to envisage any alternative solution to the replacement of
Israel with a unitary Palestinian state.

The precarious peace ended in December 1987, when some clashes
between soldiers and Palestinians were badly mishandled by Defense
Minister Yitzhak Rabin, who at first did not take them seriously but
later tried to suppress them with gross brutality. There erupted the
First Intifada of 1987-1991, during which -- as in the 1930s --
eventually Palestinians also began to fight each other. About a thousand
Palestinians were killed by other Palestinians, matching about a
thousand killed in clashes with Israeli forces.

The long era of civil war began to end -- maybe -- with the Madrid
Conference of 1991. A major consequence of the Oslo accords is that,
apart from Jerusalem, Israelis and Palestinians hardly meet each other
anymore. After the creation of the PA, weekend shopping trips of
Israelis to Palestinian cities came to an end because they became too
dangerous. Since the Second Intifada, Israel has forbidden its Jewish
citizens from visiting Areas A and B of the Palestinian Authority (PA),
lest they be killed or kidnapped. Organs of the PA are currently running
an "anti-normalization"
campaign that bans any public meetings between Palestinians and
Israelis. The PA also stopped the teaching of Hebrew for years.

Yet recently, Hebrew was returned to the curriculum in the West Bank and even in Hamas Gaza. Said a report:

"Somayia al-Nakhala, director of curriculum at the
ministry of education... points out that people in Gaza consume Israeli
products, are prescribed Israeli drugs and often watch Israeli
television via satellite or access Israeli websites. 'We are connected
to Israel,' she said. 'Politics is different from practicalities.'"

She could have added that some 200,000 Palestinians receive treatment
in Israeli hospitals annually and that Israel supplies most of Gaza's
water and electricity, even when Gaza is shooting thousands of rockets
at Israel and even though Hamas publicly declares its intention to
destroy and replace Israel. In practical terms, Mandatory Palestine is
still one country.

Lastly, Jordan and Israel made peace in 1994, after the agreed
delineation of their borders everywhere outside the West Bank. (The line
of separation between the Jordan and the West Bank itself is also all
but established, since it must run along the River Jordan and into the
Dead Sea.) With the signing of the Israel-Jordan Peace Treaty, the
violet and green lines both vanished. One thing that is certain in
international law (as well as in elementary thought) is that a peace
treaty abolishes any preceding ceasefire lines.

The Cheshire Cat

Cheshire cats have long been proverbial for their grin. Lewis Carroll
elevated that facial feature to new metaphysical heights in his Alice's Adventures in Wonderland (1865), where Alice meets a Cheshire cat that slowly disappears until only the grin lingers.

Just as the violet and green lines were on the point of expiring in
1994, the Israeli government decided to give them a fresh gasp of life
in the negotiations with the PLO that led to the signing of the Declaration of Principles on Interim Self-Governing Arrangements (1993) and the Interim Agreement on the West Bank and the Gaza Strip
(1995). They are popularly known respectively as "Oslo I" and "Oslo
II." Those two lines -- though it is unclear which of them -- were an
implicit point of reference for the provisions of both agreements. So
the grin on the face of this vanishing cat is whatever is implied about
those lines by the Oslo accords.

It is noteworthy that Oslo I and II were not international treaties,
as the PLO -- despite its widespread recognition as the exclusive
representative of the Palestinian people -- had never been the
government of a state. A central feature of the Oslo I was the election
of a Council by -- and in order to be representative of -- the
Palestinian population in the areas acquired by Israel in the Six Day
War.

Article IV of Oslo I specifies the jurisdiction of the Council, once elected:

"Jurisdiction of the Council will cover West Bank and
Gaza Strip territory, except for issues that will be negotiated in the
permanent status negotiations. The two sides view the West Bank and the
Gaza Strip as a single territorial unit, whose integrity will be
preserved during the interim period."

Article V lists the permanent status issues as "including: Jerusalem,
refugees, settlements, security arrangements, borders, relations and
cooperation with other neighbors, and other issues of common interest."
It adds, however, this proviso:

"The two parties agree that the outcome of the permanent
status negotiations should not be prejudiced or preempted by agreements
reached for the interim period."

Article VI defines the powers that in "the Gaza Strip and the Jericho
area" -- even before the election of the Council -- were to be
"transferred to the Palestinians" (meaning, presumably, to persons
authorized by the PLO). They were "education and culture, health, social
welfare, direct taxation, and tourism."

Put those three articles together and several conclusions seem to
follow concerning Israeli settlements. First, the PLO accepted that the
already existing settlements would remain throughout the interim period
until the conclusion of the permanent status negotiations. That is, the
PLO itself legitimized their continued provisional existence. Second,
the Israeli side effectively conceded that during the interim period no
new settlements would be built. This is because the powers to be
transferred immediately in "the Gaza Strip and the Jericho area"
(Article VI) were presumably ones that would be exercised by the Council
in "West Bank and Gaza Strip territory, except for" the already
existing settlements (Articles IV+V); thus the Council would exercise
them in any new Israeli settlements.

That the second conclusion is correct is also confirmed by the
following statement about direct taxation in Article 8 of Annex III of
Oslo II:

"The powers and responsibilities of the Israeli side for
levying and collection of income tax and deduction at source, with
regard to Israelis (including corporations in which the majority of
shares which grant rights to distribution of profits are held by
Israelis) in respect of income accrued or derived in Area C outside the
Settlements and military locations, will be exercised according to the
Palestinian tax code and the tax collected will be remitted to the
Palestinian side."

The implication is that only residents of the already existing
Israeli settlements -- but not any subsequent Israeli civilian settlers
outside them -- would be exempt from Palestinian taxation.

Third, the statement in Article IV about preserving the "integrity"
of the West Bank and Gaza does not except settlements. Thus Israel
implicitly agreed not to change the status of the settlements during the
interim period (in particular, not to annex them to the State of
Israel). Of course, Israel is permitted to make changes to the personal
status of Israeli citizens who live in them, as long as the status of
the settlements themselves remains the same.

A fourth conclusion, however, is that the proviso in Article V quoted
above implies that those three conclusions apply only to the interim
period. In negotiating the final status, the Palestinians can ask for
the removal of all Israeli settlements, while the Israeli side can ask
to acquire not merely individual existing settlements but blocks of
settlements that include territory lying between settlements. Indeed,
neither Israel nor the PLO is excluded a priori from asking for any part of Mandatory Palestine.

Also Oslo II (see Article XXXI of the main document) propounds
similar restrictions in force during the interim period, but adds that:

"Nothing in this Agreement shall prejudice or preempt the
outcome of the negotiations on the permanent status to be conducted
pursuant to the DOP. Neither Party shall be deemed, by virtue of having
entered into this Agreement, to have renounced or waived any of its
existing rights, claims or positions."

A fifth conclusion, then, is that if the PLO decides unilaterally to
abolish the Oslo accords, as some of its senior members have threatened,
then all restrictions accepted by Israel in the accords will end. The
violet and green lines will vanish completely once and for all, and the
conflict will revert to a conflict between two Parties within and over a
single territory -- the territory of Mandatory Palestine. Israel can
again create settlements in any part of that territory, as the only
relevant provision of the Fourth Geneva Convention will again be Article
3 of Part I.

It should be noted that the Israeli settlements were generally set up
according to proper town planning principles in which a specific area
was allotted to each of them, after which infrastructure and building
began stage by stage within the allotted area. Thus building can
continue throughout the interim period until the entire originally
planned area has been used up. Moreover, this is a right that the PLO --
whether it likes it or not -- conceded to Israel in Oslo I and II; that
is, the PLO thereby forfeited any preexisting right in international
law to oppose it during the interim period.

The same applies to Israeli building within the extended boundaries
of Jerusalem that it introduced after the Six Day War, as that is the
"Jerusalem" that the PLO agreed to defer to the final status
negotiations. The last major Israeli neighborhood to be built here was
Homat Shmuel, popularly known as "Har Homa" (from 1991 on). Recent
building that aroused tut-tuts from the international consensus was in
Israeli neighborhoods that were established earlier, such as Ramot and
Gilo. We say "Israeli" and not "Jewish" neighborhoods because Israeli
Arabs, too, are living there, as they can legally do so. From the
viewpoint of international law, they are "Israeli settlers" just as much
as Israeli Jews living there.

We can summarize all the above findings in a few sentences. All the
settlements created by Israel before the Oslo accords are legitimate,
including the new Israeli housing estates created in the extended
boundaries of Jerusalem. As long as the "interim period" envisaged in
those accords remains in force, Israel is allowed to build within the
originally defined pre-Oslo boundaries of the settlements, but is not
allowed to change their pre-Oslo status. As initial negotiating
positions on the final status agreement, the Palestinians are not
excluded from demanding a total Israeli withdrawal to the ceasefire
lines of 1949, but Israel is likewise not excluded from demanding the
retention not merely of the settlements but also of any other part of
the Mandatory Palestine of 1947 (that is, the territory remaining after
Transjordan was separated from the Mandate and made independent).

One further point concerns the hundreds of thousands of Jerusalem
Arabs who were given Israeli identity cards (but not citizenship) after
1967, yet became entitled to vote for the Palestinian Legislative
Council (in virtue of Oslo I and II). The number of them who work, shop
and pursue leisure activities together with Jews also runs into six
digits. A poll in 2011, conducted jointly by Palestinian and American agencies, yielded results like the following:

"Some 35% of them said that Israeli citizenship is their
preferred citizenship and only 30% chose to be citizens of the future
Palestinian state... 40% said they would move in order to remain Israeli
citizens if their neighborhood was transferred to Palestinian
sovereignty. In contrast, only 29% said that if the opposite were to
occur, and their neighborhood remained under Israel's authority they
would move to an area under Palestinian authority."

In fact, some 24,000 Jerusalem Arabs have already taken out full
Israeli citizenship and applications to do so now run at up to a
thousand a year, according to recent statistics.

Thus another feature of the international consensus -- that Jerusalem
should be split into two capitals for two states -- is also seriously
flawed. The maintenance of a united city is the preference of Israeli
and Palestinian residents alike, while even the latter tend to prefer
Israeli over Palestinian rule. Moreover, the whole structure of the city
has thoroughly changed during the last 49 years. Instead of
pontificating from afar, we would like the devotees of the international
consensus on dividing Jerusalem to spend a few days actually visiting
the city. There they can count the scores of border crossings that would
need to be installed, turning all the major traffic arteries into dead
ends. This, too, is "a ass."

Malcolm Lowe is a Welsh scholar specialized in Greek
Philosophy, the New Testament and Christian-Jewish Relations. He has
been familiar with Israeli reality since 1970.

Source: https://www.gatestoneinstitute.org/8865/israel-settlements Follow Middle East and Terrorism on TwitterCopyright - Original materials copyright (c) by the authors.